Plaintiffs contend that all of the persons for whom Big Lots has issued trial subpoenas, except Zeringue, are beyond the reach of the Court's subpoena power because they live outside of Louisiana and more than 100 miles from New Orleans. In response, Big Lots argues that Rule 45(c)(3)(A)(ii), as interpreted by another court in this district in In re Vioxx Products Liability Litigation, 438 F.Supp.2d 664 (E.D.La.2006), expands the subpoena power of courts of the United States over parties and party officers beyond the longstanding 100-mile territorial limit. In other words, Big Lots argues that Rule 45(c)(3)(A)(ii) effectively provides for nationwide service of subpoenas on parties and party officers.
(Opp. to Mot. to Quash at 4.) Plaintiffs cite In re Vioxx Products Liability Litigation, 438 F.Supp. 2d 664 (E.D. La. 2006), which is the case often cited for this interpretation of Rule 45: Rule 45(b)(2), which imposes the 100 mile rule, is expressly limited by Rule 45(c)(3)(A)(ii).
These courts hold that because the restriction in subparagraph (c)(3)(A)(ii) applies only to nonparty witnesses, courts should draw an inverse inference and conclude that party witnesses may be subpoenaed beyond the territorial limits of subparagraph (b)(2). See In re Vioxx Prods. Liab. Litig., 438 F. Supp. 2d 664, 666-67 (E.D. La. 2006). This appears to be the conclusion of the majority of courts that have addressed this issue.
The majority of courts interpret these provisions together to mean a that a court may compel the trial testimony of a party or a party's officer even when the person to be compelled resides beyond the 100-mile range for subpoenas. See Venzor v. Chavez Gonzalez, 968 F. Supp. 1258, 1267 (N.D. Ill. 1997); Am. Fed'n of Gov't Employees Local 922 v. Ashcroft, 354 F. Supp. 2d 909, 915-16 (E.D. Ark. 2003); Archer Daniels Midland Co. v. Aon Risk Servs., Inc., 187 F.R.D. 578, 587 (D. Minn. 1999); In re Vioxx Prods. Liab. Litig., 438 F. Supp. 2d 664, 666-67 (E.D. La. 2006). As noted by the court in Vioxx, the "person who is not a party or an officer of a party" language of Rule 45(c)(3)(A)(ii) "supports the inverse inference that Rule 45(b)(2) empowers the Court with the authority to subpoena . . . an officer of a party, to attend a trial beyond the 100 mile limit."
438 F.Supp.2d 664 (E.D. La. 2006).
.R.Civ.P. 45(c) (amended 2013). Thus, although some courts viewed Rule 45 as vesting in them authority to compel party officers to testify no matter their distance from the trial court, see In re Vioxx Products Liability Litigation, 438 F.Supp.2d 664 (E.D. La. 2006), others held Rule 45 did not authorize courts to require attendance of parties and party officers at trial when they would have to travel more than 100 miles, see, e.g., Johnson v. Big Lots Stores, Inc., 251 F.R.D. 213 (E.D. La. 2008); see also Chao v. Tyson Foods, 255 F.R.D. 556 (N.D. Ala. 2009). The 2013 Amendments resolved the Rule's ambiguities in favor of the latter interpretation:
Because Rule 45(c) directs that compliance may be commanded only as it provides, these amendments resolve a split in interpreting Rule 45's provisions for subpoenaing parties and party officers. Compare In re Vioxx Products Liability Litigation, 438 F. Supp. 2d 664 (E.D. La. 2006) (finding authority to compel a party officer from New Jersey to testify at trial in New Orleans), with Johnson v. Big Lots Stores, Inc., 251 F.R.D. 213 (E.D. La. 2008) (holding that Rule 45 did not require attendance of plaintiffs at trial in New Orleans when they would have to travel more than 100 miles from outside the state). Rule 45(c)(1)(A) does not authorize a subpoena for trial to require a party or party officer to travel more than 100 miles unless the party or party officer resides, is employed, or regularly transacts business in person in the state.
Fed. R. Civ. P. 45(c) (amended 2013). Thus, although some courts viewed Rule 45 as vesting in them authority to compel party officers to testify no matter their distance from the trial court, seeIn re Vioxx Products Liability Litigation , 438 F.Supp.2d 664 (E.D. La. 2006), others held Rule 45 did not authorize courts to require attendance of parties and party officers at trial when they would have to travel more than 100 miles, see, e.g.,Johnson v. Big Lots Stores, Inc. , 251 F.R.D. 213 (E.D. La. 2008) ; see alsoChao v. Tyson Foods , 255 F.R.D. 556 (N.D. Ala, 2009). The 2013 Amendments resolved the Rule's ambiguities in favor of the latter interpretation: The 100-mile and state radii now apply to party and non-party alike.
See, e.g., In re Vioxx Prods. Liab. Litig., 438 F. Supp. 2d 664 (E.D. La. 2006). The new rule also rejects a line of cases that held subpoena recipients could not be punished for contempt if they fail to comply with a subpoena, as distinct from failure to comply with an order compelling compliance with the subpoena.
The parties agree that she does not live or physically appear for work in Kentucky or within 100 miles of the trial venue in Bowling Green, Ky. Plaintiff asks that she be compelled to attend trial as a witness. Plaintiff states that "the issue of whether an employee of a party can be subpoenaed under Federal Civil Rule 45 (c)(3)(A)(ii) when the employee/officer resides or works more than 100 miles away from the court has been addressed by several courts" (DN 100, p. 2). He goes on to cite In re: Vioxx Prods. Liab. Litig., 438 F. Supp. 2d 664 (E.D. La. 2006), Seiter v. Yokohama Tire Corp., No. C08-5578 FDB, 2009 U.S. Dist. LEXIS 106395 (W.D. Wash. Nov. 3, 2009), Aristocrat Leisure Ltd. V. Deutsche Bank Trust Co. Americas, 262 F.R.D. 293 (S.D.N.Y. 2009), In re: Methyl Tertiary Butyl Ether ("MTBE") Prods. Liab. Litig., No. 1:00-1898, MDL 1358 (SAS), M21-88,04-CV-3417, 2009 U.S. Dist. LEXIS 86950 (S.D.N.Y. June 24, 2009), and Scottsdale Ins. Co. v. Education Mgt., Inc., No. 04-1053 Section "C" (3), 2007 U.S. Dist. LEXIS 53895 (E.D. La. Jan. 23, 2007), as cases supporting the proposition that the 100 mile limit on subpoenaed compulsory attendance at trial does not apply to employees of parties to the litigation.